On July 17, 2017, the Massachusetts Supreme Judicial Court concluded that an employee could sue her employers for state law disability discrimination for failing to accommodate her use of medical marijuana after she failed to pass a drug test. In so holding, the court interpreted workplace protections not explicitly stated in Massachusetts’ medical marijuana law.

Massachusetts’ Medical Marijuana Act and the Federal Controlled Substances Act

In 2012, Massachusetts passed a law called “An Act for the Humanitarian Medical Use of Marijuana” (the Act), which legalized medical marijuana. Under the Act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. The Act further provides that medical marijuana patients shall not be denied “any right or privilege” on the basis of their medical marijuana use. In 2016, Massachusetts also legalized recreational marijuana. Unlike other state medical marijuana laws, such as New York’s Compassionate Care Act, the Massachusetts Act does not contain anti-discrimination provisions or deem medical marijuana users automatically disabled under disability discrimination laws.

However, medical marijuana remains illegal under the federal law. The Controlled Substances Act designates marijuana as contraband for any purpose, despite the fact that a growing number of states, including Massachusetts, have legalized marijuana for medical and/or recreational use. Under the Obama administration’s Department of Justice, federal prosecutors were encouraged not to be overly aggressive in enforcing violations of the Controlled Substances Act. It remains to be seen what position will be taken by the Trump administration.

Barbuto v. Advantage Sales & Marketing, LLC

In her complaint, Christina Barbuto alleges she suffered from irritable bowel syndrome and Crohn’s disease, a chronic condition that inflames her digestive tract, for which she uses medically prescribed marijuana in the evenings, after work, to treat her symptoms. Barbuto further alleges that she disclosed her medical marijuana use to her prospective employer, Advantage Sales & Marketing, LLC (ASM), the 10th-largest marketing firm in the country, after applying for an entry-level position and learning about a pre-employment drug screen. She contends she was reassured by a supervisor that her medical marijuana use would not be an issue. She took the drug test and, after working for just one day, was fired for testing positive for marijuana in the drug test. After she complained that state law permitted her off-duty marijuana use, an ASM representative told her that ASM follows federal, not state, law.

Following her termination, she sued ASM for, among other things, handicap discrimination in violation of Massachusetts’ anti-discrimination law by failing to accommodate her medical marijuana use, and the denial of the “right or privilege” to use medical marijuana lawfully in violation of the Act. ASM moved to dismiss her complaint, at least in part, on the grounds that accommodating Barbuto’s use of medical marijuana was not a reasonable accommodation because medical marijuana is illegal under federal law. The trial court agreed and dismissed the plaintiff’s handicap discrimination claim. It also dismissed her wrongful termination claim and her claim that ASM violated the Act, on the grounds that the Act does not create a private right of action.

On appeal, the Supreme Court revived Barbuto’s state-law handicap discrimination claim. The court also affirmed the dismissal of Barbuto’s claim that ASM violated the Act, as well as her wrongful termination claim. It held that Barbuto had sufficiently pled handicap discrimination under Massachusetts law because she had a disability, suffered an adverse employment action and could perform the essential functions of her job with her requested accommodation. The court found that Barbuto’s requested accommodation – an exception to ASM’s drug policy – could be reasonable where medical marijuana is the most effective medication for the employee’s medical condition and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective.

The court based its decision on the language in the Act, which provides that qualifying medical marijuana users shall not be denied “any right or privilege” on the basis of their medical marijuana use. Because disabled employees have a statutory “right or privilege” to a reasonable accommodation, any ruling other than permitting off-duty marijuana use as a reasonable accommodation would deny that “right or privilege.”

The court also rejected ASM’s argument that Barbuto’s termination was justified because marijuana is illegal under federal law. The court stated that “[t]o declare an accommodation for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts . . . that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”

Although the court revived Barbuto’s handicap discrimination claim, she still has the burden of proving her claim, and ASM will have the opportunity to argue that her use of medical marijuana is not a reasonable accommodation, given the circumstances.

Advice for Employers

Following this decision, Massachusetts employers cannot take any adverse employment action against employees who have a prescription for medical marijuana simply because they fail an employment drug test. However, because this decision is based on a Massachusetts law, it is not binding on employers outside of Massachusetts. Notably, other states with medical marijuana laws have reached the opposite result of Barbuto based on federal law. For example, federal courts in California, Colorado and New Mexico have all rejected anti-discrimination claims by medical marijuana users against employers who maintain zero-tolerance drug policies.

New York employers should be aware that New York state’s medical marijuana law, the Compassionate Care Act, goes even further than Massachusetts’ law by automatically deeming certified medical marijuana users as automatically disabled under the New York State Human Rights Law. It remains to be seen whether New York courts and other state courts will follow Barbuto in concluding that an exception to an employer’s zero-tolerance drug policy for a certified medical marijuana user may be a reasonable accommodation. For the time being, employers doing business in states that have legalized medical marijuana use should consult with counsel prior to taking any adverse action against an employee for testing positive for marijuana due to medical marijuana use.